Dunham's Athleisure Corp. v. Keith Shepherd

FILED
May 01 2019, 5:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert F. Ahlgrim, Jr. Emily C. Guenin-Hodson
State Auto Insurance House Counsel Mark C. Guenin
Carmel, Indiana Guenin Law Office, P.C.
Wabash, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dunham’s Athleisure Corp., May 1, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-PL-2892
v. Appeal from the Wabash Superior
Court
Keith Shepherd, The Honorable Karen A. Springer,
Appellee-Plaintiff. Judge Pro Tempore
Trial Court Cause No.
85D01-1703-PL-156
Najam, Judge.
Statement of the Case
[1] Dunham’s Athleisure Corp. (“Dunham’s”) appeals the trial court’s denial of its
motion for summary judgment on Keith Shepherd’s complaint in which
Shepherd alleged, among other claims, Dunham’s negligence in the sale of a
firearm to a third party. Dunham’s presents a single dispositive issue for our
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review, namely, whether the trial court erred when it denied Dunham’s
summary judgment motion.
[2] We reverse.
Facts and Procedural History
[3] In the fall of 2016, Shepherd and his girlfriend Christina Bowman went to
Dunham’s, and Bowman asked Shepherd to buy her a gun. Shepherd refused,
and the two began to argue. After Bowman walked away, Shepherd turned to
an employee standing behind the counter where guns were sold and said,
“[W]hatever you do, don’t ever sell that little girl a gun. [S]he’s dangerous. . . .
[S]he would shoot me[.]” Appellant’s App. Vol. II at 67.
[4] On December 15, Bowman went to Dunham’s by herself and bought a
handgun. 1 On December 23, Bowman used that handgun to shoot Shepherd,
who survived his injuries. On March 1, 2017, Shepherd filed a complaint
against Dunham’s alleging negligence, negligent entrustment, and “negligent
training and supervision” and seeking damages for his injuries. 2 Id. at 41. The
parties filed cross-motions for summary judgment. Following a hearing, the
trial court denied the motions. In particular, in denying Dunham’s summary
1
Shepherd alleges that Dunham’s violated “its own corporate policies during the sale of the gun to
Bowman,” as well as “two aspects of ATF Form 4473.” Appellee’s Br. at 5, 9. As we explain below,
regardless of the bases for the alleged unlawful sale of the gun to Bowman, Dunham’s is entitled to summary
judgment in its favor on Shepherd’s complaint.
2
Shepherd also sued Bowman for “reckless injury,” but that claim is not relevant to this certified
interlocutory appeal.
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judgment motion, the trial court found that genuine issues of material fact exist
as to whether Dunham’s sale to Bowman was unlawful. And the court
concluded in relevant part that those questions of fact precluded a
determination on summary judgment that Dunham’s was immune from
liability under Indiana Code Section 34-12-3-3. This certified interlocutory
appeal ensued.
Discussion and Decision
[5] Dunham’s contends that the trial court erred when it denied its summary
judgment motion. Our standard of review is clear. The Indiana Supreme
Court has explained that
[w]e review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
“demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
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party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court’s decision to ensure that he was not improperly denied his
day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some
alterations original to Hughley).
[6] Indiana Code Section 34-12-3-3 (2018) provides:
Except as provided in section 5(1) or 5(2)[ 3] of this chapter, a
person may not bring or maintain an action against a firearms or
ammunition manufacturer, trade association, or seller for:
(1) recovery of damages resulting from, or injunctive relief or
abatement of a nuisance relating to, the lawful:
(A) design;
(B) manufacture;
(C) marketing; or
(D) sale;
of a firearm or ammunition for a firearm; or
3
Neither of these sections applies here.
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(2) recovery of damages resulting from the criminal or unlawful
misuse of a firearm or ammunition for a firearm by a third party.
[7] Our Supreme Court recently recognized that this statute “functions as an
immunity provision” and “forecloses aggrieved plaintiffs from bringing suit” for
recovery of damages 4 against a firearms seller “even if the firearm has been sold
unlawfully.” KS&E Sports v. Runnells, 72 N.E.3d 892, 899-900 (Ind. 2017). In
KS&E, the plaintiff was shot and sued a firearms seller. In particular, the
plaintiff alleged that the seller had knowingly sold a firearm to the shooter via
an illegal “straw man” purchase. On appeal, our Supreme Court held in
relevant part as follows:
A recurring theme throughout [the plainttif’s] allegations is that if
[the seller] had followed governing law and applicable gun-sales
standards, “the Smith & Wesson handgun would not have been
sold to [the buyer] and [plaintiff] would not have been shot.”
Given these allegations, KS&E enjoys immunity under
subsection 3(2). Runnels alleges he sustained injuries when [the
shooter], who had no legal right to possess the handgun, shot
Runnels with it during a traffic stop. By any measure, that
amounts to “criminal or unlawful misuse of a firearm . . . by a
third party.” I.C. § 34-12-3-3(2). And for the injuries he
sustained, Runnels seeks only damages on these negligence
counts.
Runnels cannot avoid KS&E’s entitlement to immunity by
arguing he seeks relief only for KS&E’s own misconduct and not
4
The statute does not bar “other claims, such as those for equitable relief,” but Shepherd does not bring
claims other than for damages. KS&E Sports v. Runnells, 72 N.E.3d 892, 901 (Ind. 2017).
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that of third parties Blackburn or Martin. Under Runnels’s
theory of this case, he incurred no injury until Martin shot him.
We hold under the governing immunity statute that Runnels’s
claims “result[ ] from the criminal or unlawful misuse of a
firearm . . . by a third party,” I.C. § 34-12-3-3(2), and thus are
barred.
Id. at 901-02. Further, as then-Justice Rucker pointed out in his separate
opinion in partial dissent, the holding in KS&E means that a firearms seller’s
statutory immunity would apply even where the seller knowingly and
intentionally sells a firearm to a buyer who expresses his intent to give the
firearm to an admitted felon who, in turn, tells the seller, “I intend to go on a
shooting spree.” Id. at 908 (Rucker, J., concurring in part, dissenting in part).
In other words, the Court in KS&E held that plaintiffs may not rely on the harm
caused by the misuse of an unlawfully sold firearm to sue the seller for the
unlawful sale.
[8] Here, each of Shepherd’s claims against Dunham’s arises out of the alleged
unlawful sale of a firearm to Bowman, who then shot Shepherd. Bowman’s
conduct amounts to “criminal or unlawful misuse of a firearm . . . by a third
party.” 5 I.C. § 34-12-3-3(2). Following the holding of KS&E, we conclude that
5
To the extent “third party” may have been ambiguous in this statute, our Supreme Court plainly refers to
Blackburn, the buyer, or first party in the context of the firearm sale, as a third party in the context of
Runnells’ lawsuit against KS&E and the statute. KS&E, 72 N.E.3d at 901. Thus, here, Bowman, the buyer,
is a third party under the statute in the context of Shepherd’s lawsuit against Dunham’s, and subsection (2)
applies to her criminal misuse of the firearm.
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Dunham’s is immune from liability as a matter of law. See id. Thus, the trial
court erred when it denied Dunham’s summary judgment motion.
[9] Reversed.
Pyle, J., and Altice, J., concur.
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